Rowe v R

Documents and records may constitute “articles” for the offence in section 57 of the Terrorism Act 2000. Section 57 and section 58 overlap but address different conduct. Section 57 requires possession for a terrorist purpose, whereas section 58 concerns information likely to assist terrorism without that specific purpose.

The Criminal Division may decline to follow an earlier decision reached per incuriam on false assumptions and analysis. In sentencing section 57 offences, the court must assess culpability and the intended or foreseeable harm. Consecutive sentences may reflect separate terrorist purposes, but totality must reflect the overall culpability and potential consequences of the offending.

The appellant was convicted at the Central Criminal Court before Fulford J of two offences of possessing articles for terrorist purposes, contrary to section 57(1) of the Terrorism Act 2000. The articles were manuscript mortar instructions and a substitution code referring to explosive components and potential terrorist targets. He received consecutive sentences of seven and a half years’ imprisonment.

On appeal, he contended that documents and records could be charged only under section 58, relying on R v M, Z, I, R & B [2007] EWCA Crim 218. He also challenged the jury direction concerning a defensive and terrorist purpose, and argued that the consecutive sentences were excessive. The central questions were the scope of section 57, the adequacy of the direction, and the proper application of totality.

1. The appeal against conviction was dismissed. The court declined to follow R v M, Z, I, R & B [2007] EWCA Crim 218. That decision proceeded on false assumptions about the use of predecessor legislation and on a false analysis that sections 57 and 58 of the Terrorism Act 2000 created wholly separate regimes for documents and records.
2. Section 57 is directed to possession of articles for a purpose connected with terrorist acts. Section 58 addresses collecting or holding information likely to be useful to persons committing or preparing terrorism. The provisions overlap, but neither renders the other superfluous. A document or record may therefore be an article within section 57 where the statutory terrorist-purpose element is proved.
3. The court applied the guidance in R v Simpson [2003] EWCA Crim 1499. A five-judge Criminal Division has a residual discretion when deciding whether an earlier decision should remain binding where there are grounds for concluding that it was wrongly decided. Here, the procedural deficiencies meant that the earlier decision was truly reached per incuriam.
4. On the prosecution’s concession that possession solely for lawful defence would not infringe section 57, the jury direction was adequate. Read as a whole, it required the prosecution to prove a separate and different terrorist purpose or activity, not merely an ideological motive accompanying defensive conduct.
5. The appeal against sentence was allowed in part. Section 57 creates an inchoate terrorism offence that criminalises conduct merely preparatory to terrorist acts. Its seriousness depends on culpability and intended or foreseeable harm. A consecutive sentence for the mortar notes was legitimate because they evidenced a separate terrorist intention, but seven and a half years overstated their additional contribution to the appellant’s overall culpability and potential harm. The court quashed that sentence and substituted two and a half years’ imprisonment consecutively, producing a total sentence of ten years.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction. Allowed the appeal against sentence in part and substituted a consecutive sentence of two and a half years on the mortar-notes count, making a total of ten years’ imprisonment.
• Central Criminal Court Fulford J convicted the appellant on two counts under section 57(1) of the Terrorism Act 2000 and imposed consecutive sentences of seven and a half years’ imprisonment.